CUSTODY FAQ

Custody decides which rights and responsibilities each parent possesses regarding their child or children.
In the state of Texas, custody is called “conservatorship” and will often be used interchangeably.

What types of custody are there?

There are essentially two types of custody – joint custody and sole custody. For joint custody, both parents are called joint managing conservators. Typically, one of the joint managing conservators is determined to be the residential or custodial parent and will be given the exclusive right to determine the residence of the child. In Smith County and many other counties, it is common to restrict that exclusive right to a certain geographic area. For sole custody, the custodial parent is called the sole managing conservator and the non-custodial parent is called the possessory conservator. The use of the word “possessory” often confuses people, but if you understand that Texas describes visitation as “possession”, you can then think of the possessory conservator as the visiting parent.

How do the types of custody differ?

Without going into great detail, there is a list of various rights, responsibilities and duties that each type of conservator is given. In joint custody arrangements, the rights tend be almost equal and often create a situation where both parents may have to agree on major decision regarding the child. In sole custody arrangements, the sole managing conservator receives the majority of rights with the possessory have only limited effect on decision-making regarding the child.

As a father, what are my chances of getting joint custody of my children?

Quite good in fact. In Texas, the default custody arrangement is for both parents to be joint managing conservators. For the court not to order such an arrangement, evidence must be provided to convince the judge that joint custody is not in the best interest of the child. As children often benefit from both parents being fully involved in their lives, the party seeking sole managing conservator must show that you are in some way a threat to the children, provide a bad example to the children, and are in some incapable of making the right decisions regarding their care and well being. Obviously, situations involving domestic violence or substance abuse qualify.

If I don't get joint custody, does that mean I won't get to see my kids?

No, it doesn’t. In fact, visitation periods are usually set according to the Standard Possession Order, which is adopted regardless of the type of custody arrangement. Thus, you can receive visitation under the Standard Possession Order (SPO) whether you are a joint managing conservator or possessory conservator. Of course, the SPO can also be modified or not used at all no matter what your custody arrangement. The general rule is that custody does not affect visitation.

If I don't get joint custody, does that mean that I will have to pay more in child support?

No, child support is determined by a statutory guideline formula based solely on the amount of net resources and number of children the parent is responsible for – to put it simply. Although custody in itself usually does not affect the amount of child support awarded, the amount of time your child spends with you can affect the child support award. Since the Standard Possession Order is typically used to determine when the child is with which parent, regardless of the type of custody, the guideline formula for child support applied to determine the amount of child support. More discussion regarding what affects child support can be found in the child support section of our FAQs.


What if I don't want joint custody, what are my options?

Your options depend upon whether you want to give up your chance to have joint custody or prevent the other parent from getting joint custody. A parent is not usually forced to a joint managing conservator, though it is rare for a parent not to want joint custody. The more common situation is where one parent does not believe the other parent is fit to have joint custody. The fitness of a parent examines the individual make-up of the parent, what the parent’s past or current behavior is, and how such tendencies of the parent may adversely affect the children. Essentially, the court must be convinced that joint custody would not work if ordered and that the children would not benefit from joint custody, insofar they could be harmed by such an arrangement.


I heard that since my child is twelve years of age or older, he or she gets to decide the custody arrangement. Is this true?

No, this is a common misconception. While a child twelve years of age or older may submit a document to the court indicating his or her preference with which parent he or she wants to live, the final decision is up to the court. The preference of the child is only one of the factors taken into consideration by the judge when examining the “best interest of the child”. It is typical for a teenager to pick the parent that does not have as many rules or not a disciplinarian in nature, because it makes life easier for the teenager. The family court judges are experienced in recognizing these attempts and know that a child does not always know what is best for him or her.


I don't like the custody arrangement I received during the divorce or prior custody case. Can it be changed?

Like almost anything regarding children in the Texas Family Code, orders from a court may be modified as long as certain evidence is provided that is in the best interest of the child to make such modifications. There are some limits, though. For example, custody may not be modified (changed from one parent to the other) within one year of the last court order, unless the child is in danger of sustaining emotional or physical harm. If the order is older than one year, a modification request may be heard by the judge is there is a substantial change in circumstances and then considered in light of which custody arrangement is in the best interest of the child.

What is the "best interest of the child" you keep referring to?

The best interest of the child is the legal standard used by the court to determine what its decision should be in matters regarding children – such as decision regarding custody and visitation. There are several factors that the court must consider before making its final decision as to what is in the child’s best interest. Those factors are the following:


1. The desires of the child;
2. The emotional and physical needs of the child now and in the future;
3. The emotional and physical danger to the child now and in the future;
4. The parental abilities of the individuals seeking custody;
5. The programs available to assist these individuals to promote the best interests of the child;
6. The plans for the child by these individuals or by the agency seeking custody;
7. The stability of the home or proposed placement;
8. The acts or omissions of the parent that may indicate that the existing parent-child relationship is not a proper one
9. Any excuse for the acts or omissions of the parent.